Public Bill Committee

[Frank Cook in the Chair]
CJ 08 Prison Reform Trust
CJ 09 Justice for Women
CJ 10 British Medical Association

The Committee deliberated in private.

On resuming

Frank Cook: Good morning one and all, and welcome to the third evidence session of the Committee. I remind hon. Members and witnesses that the sitting must end at 10.25 at the latest. I hope that I do not have to interrupt hon. Members or witnesses in the middle of sentences, but I will do so if need be. I ask the witnesses to introduce themselves individually.

Professor Hough: I am Professor Mike Hough from Kings college London and a research associate of the Prison Reform Trust.

Juliet Lyon: I am Juliet Lyon, director of the Prison Reform Trust.

Gillian Guy: I am Gillian Guy, chief executive of Victim Support.

Paul Cavadino: I am Paul Cavadino, chief executive of Nacro.

John Fassenfelt: Good morning. I am John Fassenfelt, deputy chairman of the Magistrates Association. I sit as a magistrate in Kent.

John Thornhill: Good morning. I am John Thornhill, chairman of the Magistrates Association, and I sit in the busy court of Liverpool.

Frank Cook: Many thanks. For the first question, I call Edward Garnier.

Q185Mr. Edward Garnier (Harborough) (Con): I begin by asking some questions about the aspects of the Bill that refer to the sentencing council for England and Wales, which are in part 4 of the Bill, beginning at clause 100. Traditionally, it has been the duty of the Governmentthe Executiveto provide resources, and it has been the duty of the court independently of Government to sentence appropriately, given the facts of the case. The impression could be gained from the design of this Bill that resource is to influence sentence. Is that your impression? Perhaps I can start with the magistrates and then ask others to comment.

John Thornhill: I think that magistrates share your grave concerns. What is important is that magistrates and other members of the judiciary are free to sentence in an appropriate way the offender in front of them, taking into account the circumstances of the offence and the offender. Clearly, there must not be any impression or attempt to fetter that discretion. Our concerns are that if we look at something like clause 107, we are moving from have regard to sentencing guidelines, which is the current position, to must follow, where that is mandatory. Coupling that with a number of other clauses suggests that that might be the case. We have been given an assurance that it is not the intention to fetter discretion, but clearly those words might suggest that that is the case and that therefore there is an attempt perhaps to blur the distinction between the Executive and the judiciary. That is our concern.

Q 186

Edward Garnier: Mr. Fassenfelt, from your position as an officer of the association but also as a sentencer in a court in Kent, do you share Mr. Thornhills concerns?

John Fassenfelt: Yes, I can sum this up in very few words. Magistrates feel that the current guidelines are in fact guidelines. We feel in the association that the proposals in the Bill will in fact become tram lines.

Q 187

Edward Garnier: Mr. Cavadino, I do not know whether this is relevant to your area of work and experience, but if you have something that might help us, I would be pleased to hear it.

Paul Cavadino: First, the Bill does not require sentencing guidelines to take account of resources. I would be sympathetic to a case for its doing so, but it does not. In clause 102, a range of factors are set out that the guidelines have to take account of. They have to have regard to, for example, current sentencing practice, the need to promote consistency, the need to promote public confidence and the cost and effectiveness of different sentences. That is a replication of the statutory requirements that currently apply to the Sentencing Guidelines Council. It does not say in that clause that the guidelines must have regard to penal resources. Clause 109 says that the sentencing council should publish assessments of the impact on resources in relation both to the number of prison places and to the probation and youth justice services.

Q 188

Edward Garnier: Do you understand that clause 109 is directed at the Executive, rather than at the sentencer?

Paul Cavadino: I believe that it is directed at trying to ensure that everyone involvedthe sentencers at the sentencing council, the Executive and Parliament, if the guidelines will still go before a Select Committee for scrutinywill see the impact that any change in the guidelines or in new guidelines would have on penal resources. That seems completely sensible. The notion of producing guidelines without taking any notice of the impact on resources does not seem a sensible course. If we had more rigorous, more effective assessments of the impact on the penal system, the Executive could see what they needed to do by means of planning for penal resources. Also, the public and others involved, including Parliament, would be able to see whether the proposal would be counter-productive and frustrate the effectiveness of sentencing. The effectiveness of sentencing can clearly be reduced, if guidelines are passed without any regard being had to whether the resources are there to put them in place.

Q 189

Edward Garnier: Are you therefore sayingI will come on to the other witnessesthat had resource assessments been in place over the past 10 years, we might have had fewer criminal justice Bills and we would not have had 3,500 new offences being created with many of those offences sending people to prison?

Paul Cavadino: The combination of the requirement on the council to publish impact assessments of its guidelines, and the provision in the Bill enabling the Lord Chancellor to refer major proposed changes in legislation or penal policy to the council for an assessment, could have been a deterrent to some of the legislation brought forward and proliferated over the years.

Q 190

Edward Garnier: Gillian Guy, do you have anything to help us on this?

Gillian Guy: From our perspective of victims and witnesses, we welcome anything that adds credibility to the system and confidence in having comprehensible guidelines that make sentencing make some sense to victims and witnesses. I agree with Paul about needing to pay some cognisance to the impact on resources for planning and capacity purposes. I would not welcome guidelines saying, If this is difficult to manage, you should change your sentencing accordingly. We are concerned that offence legislation might not get implemented, because of those resource constraints and that the Bill creates 308 new prison places. We are concerned about whether previously enacted legislation that we would like implemented will see the light of day, because of the pressure on prison places.

Q 191

Edward Garnier: We knowthe witnesses from the Prison Reform Trust might tell us more about thisthat the prison population has risen by approximately 15,000 to 20,000 since this Government came into office. We also knowthis is not a controversial pointthat about a quarter of the prison population is accommodated in cells that are too small. That is to say that about 18,000 people are doubled up in single cells and that about 3,000 or 4,000 people are trebled up in double cells. Do you think that a resource assessment of the nature set out in clause 109 would help us to deal with prison overcrowding?

Gillian Guy: It should help us to plan for prison capacity in terms of what legislation we are bringing in and what offences we are seeing. It also prompts us to look at community sentencing and other alternatives to prison and to really think about what are appropriate sentences. Victims and witnesses are not clamouring for people to be banged up at all costs. This is about having appropriate justice and a system that is separate from them, so that it is not their responsibility to ensureif incarceration is the right thingthat prisons have appropriate capacity and are properly managed.

Q 192

Edward Garnier: Juliet Lyon and Professor Mike Hough, do you think that clause 109, which deals with the resource implications of the guidelines, confuses the purpose of the other clauses dealing with the guidelines to the courts? Are there not two separate functions: first, calculating the available resources, given the state of the economy and Government finances, and how they should be deployed within the criminal justice system and, secondly, what a court should do in any given case? Would it be easier and clearer if those two functions were expressly separated rather than dealt with entirely by the Sentencing Guidelines Council?

Professor Hough: I think that they are separate functions, but there is absolutely no reason why they should not be discharged by a single body. The sentencing council is the obvious one to do it.

Q 193

Edward Garnier: Are you suggesting, therefore, that magistrates, sentencers and the Crown court should be informed of and required to take into account the resource implications following the assessments, or are you saying that that should be a matter for the Executivethe Government and the Ministry of Justice? Is it for them to learn the lessons of the assessment and to provide, or not to provide as their political policies may conclude, the answers to the questions posed by the assessment, and to leave the courts free, under statute and common law, to apply the relevant sentences?

Professor Hough: My view is that the council should take on the technical task of assessing the cost implications of any proposal. Others should decide what to do with that technical assessment. I do not think that it is for the council to actually have a handle on resources.

Juliet Lyon: In the broader context of rising prison numbers, I do not think that anyone is suggesting that introducing the new measures under the Bill would lead to a failure to provide the number of places that we might need for serious and violent offenders. However, there is the danger of seeing the system as infinite, when it is finite. Certainly, the Prison Reform Trust welcomes the proposals in so far as we like the idea of a council or commission that would look in three directionsguiding sentencers and advising prospective legislators and the public. The council or commission could serve a function in building public confidenceGillian Guy mentioned thatbut that is not altogether fleshed out as it is described currently.

Q 194

Edward Garnier: On Tuesday, Mr. Martin Nareyas you all know, he is the chief executive of Barnardos, but he previously worked for the Prison Servicesaid that just as we ration health provision, so we should ration criminal justice provision. In so far as I understood his argument, he appeared to think that there is no difference between the one public service and the other. Do you think, from the point of view of a magistrate or someone who has to look after and influence policy on prisoners and non-custodial defendants, that we can, by using these resource assessments, ration access to the criminal justice system?

Professor Hough: I have a little more to add, but if one asked the public how resource sensitive sentencing should be, they would probably answer that for grave offences, resources should not play a part, but for less serious offences, people would probably happy to see resource-sensitive justice.

Q 195

Edward Garnier: Could you just draw out the implications of your last sentence?

Professor Hough: If one is trying to be responsive to public opinion in any way, we should consider that people feel that for grave offences, resources should not enter the judges or the magistrates mind. However, for run-of-the-mill offences, if people are asked whether the fact that this sentence costs £30,000 and that one costs £10,000 should enter the magistrates mind, they will say yes.

Juliet Lyon: In terms of the numbers of people going through the courts and the sentences that are being handed down, we have seen sentence inflation, which you have drawn attention to. Lord Justice Gages report draws attention to the fact that a number of the sentences are now outside the guidelines, and they are outside at the top end, not the bottom. Anything that would curb sentences or bring us within a marginnot a gridwould be wise, because things become absolutely out of hand, to the social and economic detriment of everyone.

Q 196

Edward Garnier: Gillian Guy and Paul Cavadino, would you like to comment on my questions?

Gillian Guy: Can I make a comment about rationing the criminal justice system? I think it would do little to build confidence among the general population, who suffer more from a fear of crime than crime itself. The point is managing the criminal justice system and the punishment system. As I have said, that means thinking about the required outcomes on reoffending, restitution and punishment. We should think about what can bring about those outcomes. There are a range of options, and we can talk about managing allocation without going into rationing, which is a dangerous term.

Paul Cavadino: In my view, it would obviously be sensible to have a greater correspondence between the level of sentencing and the resources available, including the number of prison places. Prison overcrowding reduces the effectiveness of sentences by making it harder to rehabilitate offenders and reduce reoffending. The Bill does not require rationing of penal resources; it requires the publication of an assessment of the resources that would be required in order for any particular set of guidelines to be implemented.
That means that policy makers, seeing that assessment, have a decision. They can decide either to plan to provide additional resources, if additional resources are required, or they can decide to legislate to change the parameters within which sentencers operate in order to ensure that there is a different level of sentencing for some or all offences that corresponds with the reasonably foreseeable resources. The approach of requiring an individual sentencer to decide what he or she does because of resources is one that would not be consistent with the interests of justice, but we need to find a better way to bring sentencing levels in line with the resources available. Publishing an impact assessment means that policy makers would be able to see what the real impact of the guidelines would be and make policy choices accordingly.

Q 197

Edward Garnier: Can I ask one of you from the Magistrates Association?

John Thornhill: We have concerns about this particular issue, and certainly about resource-sensitive justice. It is very clear that each individual should be sentenced appropriately. It would be inappropriate if one week a particular offender received a particular sentence and the following week, because of resource implications, a different offender with a similar and like offence received a different sentence. That would be wholly inappropriate, and it would undermine any confidence in the criminal justice system, particularly in sentencing. It would effectively be, as it is sometimes referred to in other situations, sentencing by postcode. That would be entirely inappropriate, and it would mean that you are taking discretion away from the judiciary. We must keep that separation of powers.
We already have something like that in the early release scheme. At the moment, different offenders in different places are being treated differently under the early release scheme. Again, we think that that is inappropriate if a sentence is imposed according to the sentencing guidelines and there is no cogent evidence to say that, in terms of the magistrates courts, we are outside the guidelines. There is no cogent evidence for that; in fact, the evidence suggests otherwise. In those circumstances, we accept the principles explained. It is right to do cost assessments, but they should not impinge on the judiciary in the courtroom.

Q 198

Alun Michael: The sentencing council will be dominated by lawyers, and specifically by judges. Can I ask each of you, starting with Professor Hough, how we can ensure that its guidance is driven by consideration of what works and the objectives of cutting offending and reducing reoffending, not just by court-based experience tempered by resource issues, which is where this conversation has been since we started this morning?

Professor Hough: This is a very self-serving answer, but obviously research needs to feed into the councils work. I am pleased to see that there are plans in the Bill to have statisticians and researchers in the council, but there are plenty of other research resources to draw on.

Q 199

Alun Michael: There is no guarantee that they will be listened to, though.

Professor Hough: There never is.

Juliet Lyon: That brings me back to the remark that I made about public confidence. It would be acceptable not only to sentencers but to the public to see it led thus. They are more likely to feel that they can trust the information, if they see it as independent. If they see that it might have a political bias, I think that we would get a withdrawal of confidence.

Q 200

Alun Michael: I think that in evidence elsewhere, Gillian Guy has said that what victims want, other than for the clock to be turned back so that they did not become victims in the first place, is for it not to happen again. Should that not be a big focus for the sentencing council?

Gillian Guy: From my point of view, it absolutely should. I have already listed the kinds of thing that we look for as outcomes. I understand why the sentencing council is comprised as it is, but I do not see any reason why it should not open its doors to other views and other people in order to keep that perspective coming through.

Paul Cavadino: The sentencing council, according to the Bill, will have eight judicial members and six lay members. Schedule 13 sets out a range of different expertise and experience that the lay members should have between them. It seems to me that there is an astonishing omissionthe requirement for at least one member of the council to have experience in the rehabilitation of offenders. If the council is required, among other things, to take account of the effectiveness of different sentences in reducing reoffending, which the Bill requires, it seems very odd that the otherwise excellent list of experience of different types required of the lay members does not include experience in the rehabilitation of offenders.

Q 201

Alun Michael: You referred to effectiveness being among other things, but should it not have primacy?

Paul Cavadino: In my view, it should clearly be a major consideration in sentencing. Proportionality clearly has to be an important factor in sentencing. In other words, we must try to get a sentence of a severity that corresponds to the seriousness of the offence, because if we do not have that, it is not a system of justice, but a system of social engineering. Within those parameters, it makes complete sense to look for the sentence that will be the most effective.

Q 202

Alun Michael: In that case, is not your suggestion of having one person who has some experience of rehabilitation remarkably modest?

Paul Cavadino: Well, I am a remarkably modest person, but it seems to me that that is a reasonable and modest proposal.

Q 203

Alun Michael: Turning to the Magistrates Association, we are again talking about the majority of sentences handed out. Would not magistrates welcome an emphasis on effectiveness and, in effect, assistance in the judgments they make by enhancing their knowledge of the likely effectiveness of the sentences they pass, in the way that Mr. Thornhill has just described?

John Thornhill: Absolutely. We have no problem with being provided with information and data about the effectiveness of sentences. Indeed, magistrates will ask for that, but we then say that the lines should go no further than providing that information for us. We welcome the extension of the non-judicial members to a broader range of people, particularly statisticians who will provide that information. We all share the Gage reports concern about the lack of data, and that is one of the things that we would like to see extended. We think, as the Justice Committee did, that the time is not right for this particular Bill, but we welcome the idea of moving along the road of finding greater information and providing more data on the decisions that could be made. We would support that principle and move along those lines. Clearly, it provides the judiciary with the information about the effectiveness of sentences, and although we have lots of statistics already, we think that we need a lot more, and then the judiciary should be left to make the decisions in court.

Q 204

Jeremy Wright: May I first apologise to the witnesses for missing the beginning of the evidence session? I want to ask about special measures and suspect that the questions would be best directed to Gillian Guy.

Frank Cook: Order. You bid to ask about sentencing.

Jeremy Wright: I bid for special measures.

Frank Cook: In that case, I ask you to hold those questions and call George Howarth.

Q 205

George Howarth: Mr. Thornhill, you made a fairly passionate plea for judicial independence and discretion, particularly with regard to magistrates being able to sentence as they see fit, and nobody demurs from that. You made it clear that you did not think considerations about the availability of custodial places should have any impact on the sentence. Can you give the Committee an absolute assurance that those sitting in the City of Liverpool magistrates court are not influenced when sentencing by the availability of prison places?

John Thornhill: Obviously, I cannot speak for every single magistrate, as that would be inappropriate, but as far as I am concerned, and certainly this is the case with colleagues with whom I have sat, no one has ever taken that into consideration. It does not enter our heads.

Q 206

George Howarth: Bearing in mind that I probably know some of the people who sit on the bench in Liverpool, can you categorically state that the clerk of the court does not ring round before a session to find out about the availability of prison places andon occasionadvise the sentencer that should a custodial sentence be given, no place will be available?

John Thornhill: I cannot answer that question, and it would be inappropriate for me to do so.

Q 207

George Howarth: Given what you have already said, it would be entirely appropriate for you to answer that question.

John Thornhill: I cannot answer for what clerks do or how they behave. I can say only that magistrates do not discuss that particular issue. If you are saying, and have evidence

George Howarth: I am asking a question.

John Thornhill: And I am saying that I cannot answer that question.

Q 208

Edward Garnier: As a sentencer who sits in the Crown court, I can tell you that I have never heard of any judge passing a sentence because he has read in the newspapers, or been told in the dining room at lunch, that the prisons are full.

Q 209

George Howarth: It is helpful, Mr. Cook, to have Mr. Garnier guide us in this way, but it is for me to ask the questions and for the witnesses to answer them.

John Thornhill: Are you referring to secure accommodation or to prison places?

George Howarth: I am talking about prison places.

John Thornhill: Prison places. Well, I certainly cannot answer for what the clerks do. I do not know the answer, and it would be totally wrong of me to try to surmise anything about what the clerks do or do not do.

John Fassenfelt: From my experience as a long-serving magistrate in Kent, I can say that a clerk has never advised me concerning the availability of prison places.

Q 210

George Howarth: Perhaps we should move on. At the moment, if the totality of sentences handed down by all the courts exceeds the number of prison places, the only safety valve in the system is early releaseI think you referred to that earlier, Mr Thornhill. Is early release probably the least desirable way of dealing with an excess of sentences?

John Thornhill: No, because that sends a message that the sentences imposed will in fact be curtailed at an early stage. Many magistrates are frustrated by thiswe have had resignations from the magistracy because of the early release schemeand it seems to me that there must be other ways of managing that particular situation.

Q 211

George Howarth: So you agree that early release is a very unsatisfactory way of dealing with this issue?

John Thornhill: Absolutely.

Q 212

George Howarth: Thank you. Mr Cavadino, you were a member of the Gage working group, as was I. Do you see anything in clauses 107 to 109, or anywhere else in the Bill, that would require sentences to be passed based on an understanding of the current availability of prison places?

Paul Cavadino: No. Clauses 100 to 118 and schedule 13 are based solidly on the recommendations of the sentencing commission working group chaired by Lord Justice Gage. The group considered whether sentencing guidelines should be required to take account of penal resources. It decided by a majority to recommend that they should not, and that an impact assessment should be produced so that policy makers would be made aware of the impact on resources. That issue was specifically considered by the working group. Its recommendations were specifically against doing that, and the provisions in the Bill are based on those recommendations. Nothing in the Bill requires individual sentencers, or sentencing guidelines, to take account of penal resources.
Policy makers need to find a way of bringing sentencing levels and penal resources more into line, first because prison overcrowding makes it harder to carry out sentences effectively, and secondly because it leads to an undermining of the sentence by the early release scheme. The concerns expressed about the early release scheme by the Magistrates Association are a powerful argument for trying to find a better way of aligning sentencing levels with penal resources. The Government have chosen to do that in the Bill expressly by not requiring sentencers to take that into account when sentencing.

Q 213

George Howarth: One of the arguments is that requiring the court to follow sentencing guidelinesparticularly in determining tariffs, for examplewould be an undue fetter on the discretion of sentencers. Do you think the phrase,
unless...it would be contrary to the interests of justice to do so, 
is a weak test or a strong test?

Paul Cavadino: I think that it is a reasonable test. It is clearly stronger than the current test. At the moment, legislation requires courts to have regard to sentencing guidelines and to give reasons if they are passing a sentence outside the range prescribed by sentencing guidelines. This is a slightly stronger test. It requires the court to follow the guidelines, unless it is satisfied that it would not be in the interest of justice to do so. That seems to me to be an entirely reasonable test. I cannot think of any other valid reason for departing from the guidelines, and because it is slightly stronger, I think that it would aid greater consistency and therefore reduce the degree of injustice that results from inconsistency in comparable cases. It would also help to aid predictability, which is important if policy makers are to plan to resource the penal system in line with the likely results of sentencing guidelines.

Q 214

George Howarth: I wonder whether the remaining three witnesses could comment on the suitability of that test for departure from the guidelines.

Professor Hough: I think that it is a sensible testbetter than the previous one. The system proposed in the Bill could never really be described as a set of tram lines.

Gillian Guy: I think it is a test that will make sense to the general public and to victims and witnesses. The aim that we would like to see throughout this is to make things more transparent for those people using the system.

Q 215

Jeremy Wright: Gillian Guy, can I ask you about special measures? If any other witnesses want to come in, please feel free, but I suspect this is more for you than for them. Clause 82, as you know, gives the absolute right for witnesses in specified offences involving guns and knives to have special measures when they give evidence, and, as we all understand, the purpose of special measures is to enable witnesses who are anxious or frightened, or otherwise concerned about giving evidence, the opportunity to do so with certain extra help.
Is there any logic, in your view, to making a specific category of offences eligible for witnesses to have special measures, or is it more sensible simply to say, as we do now, that if the witness can demonstrate particular anxiety or concern, they should have the special measures, and if they cannot they should not?

Gillian Guy: This provision highlights the confusion around the debate on special measures, or indeed the lack of a debate around special measures. I think that the confusion arises from the fact that evidence would be worse without them, but we do not talk about the fact evidence is better with them. From our point of view, there are very few witnesses who enter a witness box who are not in some way anxious, at the very least, and who do not find the whole scenario and experience quite difficult to deal with.
Our contention is that in many circumstances, regardless of the actual crime complained of, people would benefit from some form of special measures. What has happened here is that a particular type of crime has been identifiedwe know that a particular thing is going on in society at the momentwhere the Government have obviously felt that, without anyone having to get through any degree of proof of that anxiety, those special measures should be available. As I say, our contention is that special measures should be designed for the individual, and the individualno matter what the crime, no matter what their background or what might be perceived as their level of vulnerabilityshould be afforded the ability to get special measures, if that would make the evidence better. That is our contention.
The difficulty that we have is that we are not understanding what that debate is about, such as whether it is about better evidence, whether it is about wanting to put witnesses through the most difficult scenario in order to test them thoroughly, where the boundaries of that treatment ought really to liewe act on behalf of defence witnesses as well as prosecution witnesses, and the whole scenario involves getting to justice and getting to the truth, hopefullyand whether we are dealing with expense or difficulty in providing special measures, which again almost brings us into the realms of rationing and how that is dealt with. It is important that we understand what we are actually aiming to achieve.
From our point of view and experience with witnesseswe help 250,000 of them a year through the court processwe believe that justice ought to be built around those individuals, so that they are comfortable with giving evidence and the court gets the best possible stab at the truth. In that context, we are most alarmed that in a year 18,000 witnesses, eligible under existing legislation for special measures, were not identified as vulnerable and intimidated witnesses, let alone trying to open up eligibility. Once you have eligibility, you certainly have to be able to identify people and offer those measures. Let us be honest about what we are trying to achieve here.

Q 216

Jeremy Wright: You know that one of the arguments made against special measures, in particular circumstances, is that they make the defendant look more guilty when a witness is given certain measures through which they can give evidence. To counter that argument, would it be better for all witnesses, particularly those under the age of 18, for example, to be entitled to special measures, as a matter of course, so that no jury could look at a particular witness and say, The fact that that witness has special measures must mean that the defendant is a little more guilty?

Gillian Guy: It assists the argument around allowing people generally to understand the system and to get special assistance in giving the best evidence possible. Obviously, it would not identify particular defendants as being in cases where witnesses feel particularly vulnerable. There would be a broad approach, which would not act to the detriment of either party. As I say, however, making then breaking that promise is worse than not making it in the first place. We must ensure that we make good on the promise. We also have to be clear, when we talk about special measures, that the whole gamut of special measures does not apply to everybody. It offers what would help in individual circumstances to help us get to the truth.

Q 217

Madeleine Moon: I have a particular question about the coroners duty to investigate, especially following a violent death or a death by suicide in prisons. On the issue of the prevention of further deaths, I am concerned that the current system does not necessarily investigate fully the background to the individuals death and their history that perhaps led to that death. I am aware of psychological autopsy studies that have increased the background investigations into an individuals personal history. They have produced tremendous evidence in relation to suicide in particular. What is your view on the best way to structure investigations to give us far greater information and evidence to help to prevent future deaths and which might even influence sentencing in relation to deaths in custody? Can you comment on that?

Juliet Lyon: I would like to respond to that both because we run an advice and information service that responds to about 5,000 prisoners and their families each year and because I recently attended an inquest with a mother who had been using that service. The inquest was four years late. We have asked that consideration be given in the Bill to limiting the amount of time that people have to wait, which puts a huge strain on bereaved families. In the course of being asked to represent herself, she was means-tested and had to consider remortgaging her property in order to afford to discover why and how her son died in prison. That concerns an omission in the Bill that we would very much like amended. In answer to your specific point, in this instance the young man was severely mentally ill and had been for a long time. The inquest allowed us, from the prison gate onwards, to understand what had happened to him once the sentence was passed. He found it impossible to cope with custody. He was a very intelligent young man and he found it very hard. He was put into a segregation unit for his own protection and was dead within a matter of days. He was facing a five-year sentence. We discovered in the course of the inquest that the staff had left a plastic bag in his cell, which allowed him the means to kill himself.
What was missing, clearlythis is the point that you are raisingis the question, What about the decision to imprison in this particular individuals case? There had been information in court about his mental health history and a report from a psychiatrist offering to take him in for further in-patient treatment. He had a previous history of about 11 years of treatment. In that caseit would not be true in every casethe information about the decision to imprison would clearly have been pertinent to understanding not only how that young man came to take his own life in a very bleak situation in prison but the issue for other vulnerable people, particularly mentally ill people, in similar circumstances. It is a great regret that that could not be investigated. It was a great regret to the coroner himself; he said so.

Q 218

Madeleine Moon: Do you think that it would be helpful if there were national guidelines to be followed in investigations so that consistent information came through, rather than leaving it to individual coroners to conduct their own form of investigation? Do we need to establish the nature of the issues to be investigated? Professor Hough, with your research experience, can you comment on that?

Professor Hough: I am not in a position to comment on those issues at all.

Juliet Lyon: The only issue with guidelines is that one would still have to take clear account, obviously, of the individual and their circumstances.

Frank Cook: For practical purposes, I will move on to live links.

Q 219

David Kidney: In a moment, I will ask the witnesses about the significance of removing the safeguard of requiring the consent of the accused before using live links. First, though, will John Thornhill and Gillian Guy say something about the present use of live links and the existing law? How does it work practically in magistrates courts, and are there any implications for the delivery of justice? Gillian, what is the experience of victims of crime with access to live links?

John Thornhill: Many courts now conduct cases, sentences and administrative hearings over live links. We have found no serious problems with them so far, and no problems have been reported to us. Clearly, there are concerns about whether the defendant fully understands what is happening. There are issues about the defendant not wishing to engage, and how we manage that particular situation. Contempt of court issues may arise, and that is something that we need to look at. In principle, at the moment, we find no serious problems with them, but we are concerned about the defendants ability to say that they do not want to be involved. That is what concerns us in the proposed legislation.

Gillian Guy: The experience thus far has been that they have been broadly welcomed. They are a way to ease the situation of giving evidence, which is the aim. The issues have been around early decisions about whether live links are to be used or not, so that witnesses can get to grips with what that means, whether they have been successful in giving that facility, consistency in their availability and an explanation of what they actually mean. For example, there are certainly witnesses who did not have a full explanation and thought that they could not be seen. They were shocked to find that that was not the situation. It is really about early application, early decision and early explanation. Live links are but one method of helping people feel at ease with the process.

Q 220

David Kidney: That is helpful to start with, but can I now go through the witnesses? Juliet Lyon, I do not think that the written response that you sent us covers that particular point. A lot of the links are from prison to court. Do you have concerns about changing the present system by removing the consent, and if so, can you suggest any safeguards in its place?

Juliet Lyon: We have not covered it in our written evidence. I have some concerns about the permission being removed. That would be the issue. The other issue, which overlaps with information that we provided, was under clause 87, which discusses examination of the accused through an intermediary. Having just conducted three years of work on people with learning disabilities and learning difficulties in prison, we are acutely aware how many people have gone through the criminal justice system not fully understanding their role in it or the procedures at police stations, at courts or after they enter prison. We welcome some of the suggestions for improving information, which would be relevant here. There are issues that arise prior to that, such as fitness to plead. They are not in the Bill at the moment and need to be reinforced.

Q 221

David Kidney: Others are expressing concerns about the potential for the abuse of prisoners. First, they would not be seen because they did not appear in court, and they could be subjected to subtle pressure to plead in a way that they might not plead in a courtroom. Do you share those concerns?

Juliet Lyon: It is difficult because you need room for flexibility, which is hard to get. It is vital for some individuals to be in court so that they can see, and contribute to, the procedure. For others it is pretty intolerable. Some face an immensely long journeypeople are held further and further away from the court of committaland all the rigmarole that that involves. Pragmatically, it is often best that they do not appear, but you need to have flexibility. Taking away the permission is potentially problematic.

Q 222

David Kidney: Gillian Guy, do you welcome the change and do you have any concerns about it?

Gillian Guy: The concerns are in terms of ensuring that justice is seen to be done. That is clearly about ensuring that the procedure is in the best interests of getting to the truth, but it is also about expediting the procedure. Some of the damage that is inflicted on witnesses and victims is often because of the long drawn-out process of trying to get into courts in the first place and, as Juliet said, the long travelling distances involved. People sometimes hang around for days and have to go backwards and forwards, and that does not help the situation or peoples anxiety. Expediting the procedure has helped.
Arriving at a decision quickly is good for witnesses, but I do not think that we want to lose the primary objective of justice by overriding the rights of the defendant. The decision ought to be made in the interests of the case, not the individual.

Q 223

Tim Boswell: Briefly, Gillian Guy referred earlier to alleged inconsistencies in the use of the measures and had some concern about it. I am not familiar with them myself, but it would be useful if you, Gillian, and/or John Thornhill, could say whether the resources issue crops up again. Is there a need for greater consistency of practice, and is that constrained by resources in particular cases? Will the Bill help to address that?

Gillian Guy: It is the case with all the initiatives that the resources do not necessarily follow; therefore, there is inconsistency in application. I do not see that the Bill addresses that. It is for others to allocate the resources to ensure, as I said, that promises made are kept.

Q 224

Tim Boswell: Perhaps before Mr. Thornhill responds, I could follow that comment by asking him to mention his experience of resources, and to say whether a bench that has a difficulty with the procedure is in a position to influence decisions on the allocation of resources to deal with it.

John Thornhill: Certainly, resources are a concern. There are two levels of resources. First, on equipment and the consistency of equipment around the country, there were to be a certain number of pilot schemes, but some of them will not go into operation because of a lack of resources or problems with resources. The resources have to be there to ensure consistency right across the country if we are going to deliver.
Secondly, we are seeing a rise in the use of interpreters in court, and we have concerns about how interpreters will be used. Will they be in the prison or the court? There are concerns about communication between the interpreter and the witness or defendant.
Resources are always a problem. The issue of the time spent hanging around and waiting was mentioned. When we were discussing the Sentencing Guidelines Council, there were concerns about resources for the prison population, but we have concerns about the resources for community sentences. We see long waiting times. The recent crime figures show that there are large numbers of people in custody awaiting either trial or sentence. That is a real concern to us as magistrates because, as one of my colleagues just said, justice is not being done.
We have no problems with the principle of live links and there are obvious reasons why they should be used in the interests of expedition. However, all partiesprosecution, defence, magistrates and judgeshave to be able to say, This is not working in the best interests of this defendant and these witnesses. Therefore, we need to ensure that there is a live appearance, either by the witnesses or by the defendant. That has to be there. Whether you remove the permission of the defendant or build in a clause that allows submissions to be made on each occasion on that issue, something along those lines ought to be in the Bill. It should not be blanketYou must appear.

Q 225

Tim Boswell: That is very helpful. I would like to ask about your experience in cases of individual witnesses. Some comment has already been made about confusionfor example, on whether they know that they are going to appear. Is it your experience in court that, on the whole, magistrates address these matters in a way that makes things clear to people, and could we improve that practice if not by legislation?

John Thornhill: I do not think that there is any necessity to improve that practice by legislation. This is about having proper guidelines and providing proper information to those who will appear in court. Certainly on the benches where I have sat, either in the chair or as a winger, everyone has been at pains to ensure that those who are appearing on the live link fully understand what is happening in the court. Our legal advisers, for instance, will pan the camera round to show the defendant or the witnesses who is in court and explain who those people are. Also, the defendants have an opportunity to have a live link with their advocate before the court session starts. In all those terms, my experience at the moment is that generally they have the opportunity to understand what is happening, but I do appreciate the point that was made. If it is not explained to witnesses, that is inappropriate and it would then be for the bench or a judge to explain to the witnesses what was happening.

Q 226

Alun Michael: My question is first to Victim Support, but I would be interested in the views of other members of the panel. It focuses on the commissioner for victims and witnesses. There has been encouragement from Government for the system generally to show greater respect to victims in two senses: first, in relation to the concern articulated by Victim Support that I mentioned earlierthat what has happened does not happen againand secondly in relation to the experience in court of victims and witnesses. We have had the statutory code of practice for victims of crime. We have had things such as the prosecutors pledge, although from evidence given to the Justice Committee, I got the general impression that that does not seem to have any great salience. What will the victims commissioner add and how can we be sure that the commissioner will do what previous measures have been intended to do?

Gillian Guy: Obviously, the Government themselves will answer on what the commissioner will add, because the legislation here is changing what was proposed five years ago. Five years ago, Victim Support was a supporter of the commissioner because of the state we were in at the time. In five years, an awful lot has happened. If nothing else, people talk about victims and witnesses constantly. We talk about victims and witnesses being at the heart of the criminal justice system, and my view is that we still have a hell of a long way to go on that, but at least we say it and we try to put things in to support it. We do have the victims code, the witness charter and a number of quite strong voices around now for victims and witnesses, not least of which is my own organisation. Indeed, we strengthened ourselves quite recently to be able to do that even more, with the whole of England and Wales being spoken for in those terms.
The difficulty we currently haveMinisters are aware of thisis that it is not altogether clear to us why this is happening now as opposed to five years ago, when there was a lot to be shifted. Also, why this? It is a rather watered-down version of the commissioner of five years ago. It is very important to us as an organisation to ensure that our concerns are addressed about possible duplication and possible confusion about the mixture of voices around, and to receive reassurance that resources will not be diverted away from victims and witnesses into that kind of edifice. Those are our questions and that is what we put in evidence. Times have changed and we do not fully understand why this, why now.

Q 227

Alun Michael: Are there any comments from other witnesses?

John Fassenfelt: Magistrates have been told in the past that victim impact statements are available. I think this is in relation to the comment recently made concerning resources. We do in theory have victim impact statements. When I have asked for them, 90 per cent. of the time they are not there. If you have an initiative you must provide the necessary resources to back up that initiative.

Q 228

Alun Michael: Is it as bad in Liverpool?

John Thornhill: Yes, it is as bad in Liverpool. Very often, the victims are not made aware that they can make such a statement. It is at the very early stages in dealing with the particular incident that they need to be made aware of the opportunity to make that victim impact statement. It is no use, as John says, when we often ask in court, Has a statement been made? and no, it has not. That obviously is to the disadvantage of the victim. Clearly those victim impact statements are an important piece of the sets of information that are provided to magistrates and judges when making decisions.

Q 229

Alun Michael: If something goes wrong, currently there are about 10 different organisations that have a piece of the criminal justice system, with 10 different ways of making a complaint or seeking to register a complaint. Is that adequate? Is that satisfactory?

Gillian Guy: Certainly from Victim Supports point of view, on behalf of victims and witnesses, no, it is not. It is very difficult, I think, to give to people who are unfamiliar with the system the responsibility for finding their way through various complaints procedures, finally ending up with the parliamentary ombudsman under the victims code. I think that there was roomand as you know we have said as an organisation that we think the Bill could be a missed opportunity for victims and witnessesto bring an entire strategy together on their behalf and put them very much at the heart of the system, to allow them to be central to the whole system as it goes along.
We consider that that is missing at the moment, in terms of a complaints system that would be one complaints system and would be clear to people who would not have the onus and worry of having to work their way through everybodys different cultures and ways of dealing with complaints. As I believe I said in evidence the other day, if people are serious about dealing with complaintsand that means improving matters as a result of complaintsthey make it easy to complain.

Q 230

Alun Michael: Would that be a role for the commissioner for victims and witnesses?

Gillian Guy: I think it could be a role for the legislation.

Q 231

Jennifer Willott: I want to ask, just expanding on that, about the role of witnesses, and the support for witnesses and victims, in the coroners system rather than magistrates courts and Crown courts. To declare an interest, I used to work for Victim Support before I got elected, and I know that in some parts of the country there is a witness service equivalent in coroners courts, but it is quite patchy. Victim Support has said that it would like that to go on much more broadly across the country. Is anything needed in the Bill to enable that to happen, or is it simply a matter of resources?

Gillian Guy: I think in terms of the Bill what we have is a charter, and that is to be welcomed, in that anything that tries to set out some rights and expectations for witnesses is welcome; but it does not really go far enough.
If we look at the clause regarding support in coroners courts, that really is about some coroners courts having some support available on sitting days. As people may be aware, in the witness service people are, as volunteers, available from when a witness is identified right the way through until those people deem it unnecessary to have that kind of support. We would say that there needs to be a system that is not fortuitousthat is the word I would use rather than patchy. Where there is a little bit of resource somewhere, Victim Support and the witness service get in and give a little support. That is now diminishing and ebbing away, and we would like to see proper provision for coroners courts to have witness support throughout, in the way that we know it in the criminal courts.
It would also be good to see that replicated in civil courts, where there are some quasi-criminal cases going on without such support.

Q 232

Jennifer Willott: And you would like to see that included in the charter specifically?

Gillian Guy: I think the charter could go further, but the charter itself may not achieve it. It is a matter for the policy writers and legislators to say whether we need legislation to set that up and make it actually work, but it would need resources and a commitment to see it happen.

Juliet Lyon: There is scope for amending the charter to ensure that we get rid of this morally repugnant means-testing so that families are entitled to financial support. It is about equality of alms, if you like. Quite often they are not represented because they cannot afford to be, and in cases of death in custody they are up against the Prison Service, which is very well represented indeed, and that is not fair.

Q 233

Jennifer Willott: That relates exactly to the question I was about to ask you, which concerns access to legal aid at inquests. You have just put forward one side of the argument, and we have already heard the other side, which is that if both sides are represented by lawyers it can turn into a quasi-trial so that the character of an inquest is changed and, rather than being inquisitorial, ends up being much more adversarial and more like that of a criminal court. What are the feelings of the other witnesses who have an interest in the provision of legal aid for families, particularly in cases where the other side is represented by lawyers? Would that counteract that imbalance and make it fairer or end up changing the character of an inquest?

Gillian Guy: I think that it is about equality, balance and ensuring that no parties at an inquest feel severely disadvantaged. There are other ways of dealing with how the system then operates, but that does not mean that people should be disadvantaged to make it a less professional approach.

Frank Cook: For the final 14 minutes we can fix our gaze on witness anonymity.

Q 234

Edward Garnier: I wonder whether I might ask the magistrates what their experience is, either as individuals or an association, of the use of the emergency legislation we passed last summer to allow for witness anonymity in court; the other witnesses are welcome to comment on that.

John Thornhill: I do not think that we have had any examples of that, so there is nothing on which we could comment at this stage.

Q 235

Edward Garnier: Gillian Guy, have you been involved in any cases in which victims have been involved with witness anonymity orders ?

Gillian Guy: Not directly. Of course, that relates to investigation and witnesses. Our point of view on investigation is that it is so difficult to get witnesses to come forward in certain cases, which is clearly what gave rise to the measure, that we would like to see it potentially extended beyond the age group to which it is currently restricted. As far as witnesses are concerned, we welcome anything that makes it easier to get to justice and the truth and allow the general public as well as victims and witnesses to feel that there is some system that will support them as they go through, but the safeguards are incredibly important. I do not, however, have a witness to provide to you who has been through that.

Q 236

Edward Garnier: So you have no direct experience of how that is working. I will move on to bail. You will perhaps have seen clauses 97 and 98, which will amend the current bail law. It has been suggested that that will restrict the ability of courts in certain circumstances to give bail in murder cases, and if you look at the black letter text of the Bill you will see that there is no doubt that it will. Does that matter or concern you, and is it a good thing? What is your general view on that?

John Thornhill: As most charges normally go directly to the Crown court, they will only ever appear once in our courts. We clearly have concerns that the matter should be dealt with expeditiously in the Crown court, and if the decision on bail is reserved to the Crown Court, that is satisfactory. However, it is suggested in the legislation that that has to be done within 48 hours, which seems too long to us, as magistrates, and we would like to see that period shortened. Nevertheless, we still think that it would be appropriate for bail applications to be made in the magistrates courts in those circumstances. At the moment, magistrates take all those considerations into account. They make bail decisions based on the offence and on whether there is satisfactory evidence to suggest that the defendant will commit further offences while on bailfailure to surrender, interference with witnesses or any other considerations. All that is in current legislation when magistrates make decisions about bail.

Q 237

Edward Garnier: Do any other witnesses have observations on clauses 97 and 98?

Gillian Guy: On behalf of victims we particularly welcome the additional emphasis on public protection. Although I take your point that there is existing legislation, that is not entirely the experience or the perception of victims and witnesses. This kind of legislation, which puts an additional emphasis on public protection, is welcome. We would also like to see greater notification given to victims and witnesses when bail is granted. I know that the code has certain provisions in it and compliance with that code is necessary. We would like to see the code made stricter so that people are given immediate notification.

Juliet Lyon: The Prison Reform Trust would like to see some effort made to look at the Halliday review of sentencing, in which a recommendation was made about an intermediate estate. That would not mean a stark decision between bail or custodial remand, but would look at provision within a community that was adequately supervised and met the requirements of the court. Unfortunately, that recommendation in the Halliday report never went anywhere, but we believe that it is still applicable today.

Q 238

Edward Garnier: I appreciate that the Bill deals with about 25 different subjects, but there are provisions in it to allow a magistrate decision to be made by one justice of the peace as opposed to a bench of two or three. Do you see that as a useful advance, either in bail caseswhich it does not coveror in other decisions that courts sometimes have to make? One observation made is that it is difficult to get a bench of magistrates together for quick decisions or lengthier cases. Do you see an argument for allowing magistrates to sit with fewer members on the bench?

John Fassenfelt: As a serving magistrate I think that the Magistrates Association would see no problems with that as long as it is only used in emergency situations. I sat in a police station on Christmas day in order to adjudicate in an adjournment case. We would not see any problems in that direction.

John Thornhill: If it is about cases or situations that are mainly administrative issues, we would not have a problem. If it involves making decisions about innocence or guilt, or regards sentencing or something of that nature, we still believe that such matters should be dealt with by a bench of three magistrates. However, if it is expeditious, then it is appropriate.

Q 239

Frank Cook: If members of the Committee have no further questions for the witnesses, is there anything that the witnesses would like to offer or comment on?

Juliet Lyon: In our written evidence we have drawn attention to what we feel are two notable omissions from the Bill. The first is the possibility of amending the Rehabilitation of Offenders Act 1974. All through our correspondence with Ministers, ever since the Breaking the Circle consultation in 2001which I understand was generally welcomedthere has been no effort to amend that Act.
We are always being told that there is no legislative opportunity, but the Bill appears to present such an opportunity, and we would like the Rehabilitation of Offenders Act to be considered. At the moment it undoubtedly causes people to fall into a difficult situation. If they disclose their previous offence or imprisonment, they are likely not to get a job. If they do not disclose it and they are found out, they might lose their job. It certainly leads to further offending and is not calibrated correctly.

Frank Cook: That seems very apropos.

John Thornhill: We have talked a lot about the monitoring role of the Sentencing Guidelines Council, particularly in reference to sentences in court, where justice can be seen to be done. The Magistrates Association and magistrates have grave concerns about out-of-court disposalsthe abuse of fixed penalty notices, penalty notices for disorder, conditional cautionsand a whole range of issues where they do not appear to be effective, given that at least 50 per cent. of them are not complied with.
We would like consideration to be given to including scrutiny of out-of-court disposals in the Sentencing Guidelines Councils monitoring role. We are gravely concerned that 50 per cent. of fines and penalty notices for disorder, for instance, are not paid. They then go to the court to be imposed, which acts as another drain on the finances of Her Majestys Courts Service, when the money was probably originally granted to the Home Office. We have grave concern about that particular issue.
Another figure that we have reported is that where conditional cautions are imposed and not complied with, no further action is taken 38 per cent. of the time. Effectively, that means that the offender has got away with it. We are talking about in court, where there is public scrutiny. Anybody can go into a court. Justice can be seen to be done. With out-of-court disposals, it cannot always be done and, in the majority of cases, it cannot be seen to be done. We would like consideration to be given to including a scrutiny of that system in the Sentencing Guidelines Councils remit.

Q 240

Edward Garnier: Following that, I am hearing anecdotal evidence that in a number of quite serious cases involving rape and violent offences, the police are not progressing cases beyond a complaint, either because it requires too much effort to get additional evidence at the request of the Crown Prosecution Service or because they are not confident that the victim or some other relevant witness will appear in court, so they do not bother. Defence solicitors are telling me that their clients are getting off scot-free. Sometimes they get a caution, but often they are simply not proceeded against. Do you think that the council might also look at that?

John Thornhill: I will answer that one directly: absolutely, yes. We have similar anecdotal evidence, and it is of grave concern to us. The out-of-court disposals are undermining public confidence in the justice system, when the courts are seen to be doing justice.

Q 241

George Howarth: What is the reason for that failure? Is it purely administrative, or is there some other reason?

John Thornhill: There may be a whole range of reasons. We do not know what those reasons are. Indeed, part of the collection of data remit of the Sentencing Guidelines Council will be to seek those data and find out that information, as well as the causes and reasons why there is non-compliance. The figures are high.

Q 242

Frank Cook: Are there any further words of wisdom, in a John Humphrys one minute?

Paul Cavadino: I would like, very briefly and very strongly, to support Juliet Lyons comments that the Government agreement in 2003 to the case for reforming the Rehabilitation of Offenders Act 1974 is now more urgent than ever.
Later this year, the Government intend to introduce basic disclosures, which means that anyone applying for any job of any kindnot just sensitive occupations, but any jobcould be required by an employer to produce a certificate showing his or her unspent criminal convictions. There is a real risk that that could lead to much greater discrimination against ex-offenders in the job market and, therefore, to an increase in reoffending, because employment is crucial to reducing reoffending. The Government accepted the case for reform five years ago. It is time, in our view, for the legislation to be included in the Bill.

Gillian Guy: As has been said, this is a very wide-ranging Bill. We have not spoken about data protection. We would like to see consultation on guidance to ensure that it is about sharing information safely rather than stopping the sharing of information. It would make all our jobs much easier if we could do that. Omissions from the Bill include a clear strategy about victims and witnesses, which would give rise to other provisions. A taster of those would be, perhaps, looking at criminal injuries compensation, which has not been touched on; as we have said, special measures for all; a complaints procedure that is comprehensive and comprehensible in the criminal justice system; support for witnesses in the civil and coroners courts; and an obligation to refer for witness support to the witness service.

Frank Cook: If you will forgive my impersonal comments, I would like to thank all six of you not only for your answers today, which have been illuminating, but for the words of wisdom that you have thrown in at the end. They are very helpful indeed, and very pertinent.
I am afraid that that brings us to the end of the time allotted for the Committee this morning. I remind right hon. and hon. Members that the Committee will meet again at 1 pm today.

The Chairman adjourned the Committee without Question put (Standing Order No. 88).

Adjourned till this day at One oclock.